Jeff Sadow: Nuisance records request can cost taxpayers a bundle

After a few months in office, Republican Attorney General Jeff Landry received two public records requests. They cast a wide net, involving Republican Landry’s conduct as a public official, his office’s relations with legal services subcontractors and any energy firms, and the approval of contracts let by other government agencies.

The requests related to a number of disputes Landry had at the time with Democratic Gov. John Bel Edwards, including differences over the governor's support of environmentally related suits against the energy industry. An out-of-state resident, Scarlett Martin, filed the records request, and Landry’s office accepted her payment for providing the records.

Landry failed to provide the records as quickly as state law required, an understandable delay given the logistics of delivering such a boatload of documents in a matter of days. Then Martin, an activist for left-wing causes when she lived in Louisiana, hired former state Democratic Party chairman Chris Whittington to sue for their release. It’s unclear whether Martin and Whittington intended merely to harass Landry or hoped for something bigger, like uncovering information that might embarrass Landry and weaken his challenge to Edwards.

Landry eventually did come up with the materials, but Martin and Whittington still want their pound of flesh. They argued in state district court that taxpayers should pony up damages for the attorney general's delayed response and also pay Whittington’s fees.

Prior to the trial, Landry’s office argued he should avoid any penalty because Martin lives out of state. He drew on a 2013 U.S. Supreme Court ruling that nonresidents have no constitutional right to access a state’s public records because the laws are really meant to serve only those who live inside the state.

However, the Virginia open records law considered by the high court specifically excluded nonresidents. Louisiana’s doesn’t, as Whittington pointed out in his rebuttal. At the trial, the judge rejected Landry’s view that the exclusion was implied, although he didn’t levy penalties that could have reached $20,000. Attorney fees, however, will cost taxpayers $25,000.

Yet even if the court had agreed with Landry, the ruling would have created little impediment to public records. Even before the 2013 ruling, organizations were finding volunteers in states with the residential exclusion, who then filed requests for the nonresidents wanting records.

This controversy should inspire a debate on the bigger issue of abusing open records laws. Louisiana mandates that government reimburse “reasonable” litigation costs of successful plaintiffs and gives courts the option to fine offenders only for arbitrary and capricious tardiness.

But related court decisions declaring that requests can’t overly burden officials don’t really do much to prevent nuisance filings. In states with similar laws to Louisiana's, activists sometimes flood agencies with multiple, nebulous, and/or trivial public records requests, hoping to overwhelm government officials so that they'll be unable to comply with sunshine laws. If that happens, the activists can essentially extort costly legal settlements.

To discourage such abuses, Louisiana could follow other states that allow judges to rule such requests as frivolous, letting them award damages against the filers. Additionally, local governments and state agencies should identify and hike underpriced fees that don’t reflect the true costs of gathering and copying public documents, including electronic records. That would help dissuade political fishing expeditions.

Louisianans benefit from shining sunlight on their governments, but they also deserve protection against wasting their tax dollars on gamesmanship.

Jeff Sadow is an associate professor of political science at Louisiana State University-Shreveport. He is author of a blog about Louisiana politics at www.between-lines.com and writes about Louisiana legislation at www.laleglog.com. Follow him on Twitter, @jsadowadvocate or email jeffsadowtheadvocate@yahoo.com. His views do not necessarily express those of his employer.